A Constitutional Right of Informational Privacy

Don't assume that, if someone wants access to personal information, they are planning to use it in harmful ways. Let the privacy exemption do the work.

by / May 31, 1998
Can disclosure of personal information under a state open-records law violate the U.S. Constitution? Under a recent decision by the U.S. Court of Appeals for the Sixth Circuit, the answer appears to be "yes," under certain circumstances. While the facts of the case are interesting enough on their own, the implications of the decision could change the access/privacy equation dramatically.

The case involved three undercover Columbus, Ohio, police officers who took part in an investigation of a drug conspiracy involving members of the Short North Posse -- a violent gang from the Short North area of Columbus. Forty-one members of the gang were tried on drug conspiracy charges, and their defense counsel requested information from the personnel files of law enforcement officers who participated in the investigation. The city, believing that disclosure was required under the Ohio Public Records Act, disclosed the information. The three undercover officers sued the city, claiming their 14th Amendment rights were violated when the information was disclosed. They argued that the city promised them confidentiality for their records and that disclosure to the defense counsel of their names, addresses, phone numbers, driver's license numbers -- as well as information about family members -- put them and their families at grave risk of physical harm.

The Sixth Circuit agreed. Writing for the court, Circuit Court Judge Karen Nelson Moore pointed out that "we do not mean to imply that every government act which intrudes upon or threatens to intrude upon an individual's body invokes the 14th Amendment. But where the release of private information places an individual at substantial risk of serious bodily harm, possibly even death, from a perceived likely threat, the 'magnitude of the liberty deprivation ... strips the very essence of personhood.' Under these circumstances, the government act 'reaches a level of significance sufficient to invoke strict scrutiny as an invasion of personhood.'"

Implicit Rights

While there is no explicit right of privacy in the Constitution, the Supreme Court has concluded that such a right is implicit. However, the firmly established privacy rights accepted by the court have centered on intimate aspects of a person's life, such as contraception or, more controversially, abortion. The court's decision in Whalen vs. Roe, concerning whether access should be permitted to a database of prescription drug information, found that there could well be a constitutional right to informational privacy, but it stopped short of finding one in that case.

Opening up the possibility that a constitutional right of informational privacy exists means that, given the right circumstances, some federal court was likely to apply the right. The Sixth Circuit seems to be the first to really rise to the challenge, although its decision takes pains to limit its application. While finding that the undercover police officers had a constitutional right of informational privacy in their personal information when disclosure could likely lead to threats of violence or actual physical harm, the court shied away from saying that such a right existed under less-threatening circumstances. However, it said the city of Columbus would be required to notify the officers if disclosure of their personal information was contemplated. Notice was required, the court observed, to allow the officers an opportunity to challenge the disclosure in court before the cat was out of the bag.

Ohio Stands Alone

The egregious circumstances that gave rise to this case might not have happened anywhere but in Ohio. In virtually all states, the privacy exemptions in the open-records law would have protected this information; but the Ohio Public Records Act has no privacy exemption, and the city of Columbus believed it had no basis on which to withhold the information. Rulings of the state Supreme Court have supported this view, allowing disclosure of all kinds of personal information that probably would not get out in other states. Typically, the Supreme Court pointed out that the lack of a privacy exemption was a considered decision by the state Legislature, and unless the Legislature decides to amend the law, the court cannot substitute its judgment for that of the Legislature.

Several years ago, the Supreme Court drew something of a line in the sand when faced with a demand by the Akron Beacon-Journal that the city of Akron disclose a database of information about its employees, including their social security numbers. While the city had already disclosed names and addresses, the newspaper wanted the social security numbers. Since there was no explicit basis in the law for refusing access, the Supreme Court ruled that disclosure violated the federal Privacy Act and the U.S. Constitution. However, perhaps to ensure fellow residents that it hadn't turned into a privacy advocate, in a later decision concerning access to 911 tapes, the court said the tapes had to be turned over in toto, even if they contained individuals' social security numbers on some taped exchanges.

When it comes to access, Ohio is a privacy-free zone. Access advocates have seen this legislative choice as a bold move to establish that public records are for the public and that embarrassment is not a legitimate reason for withholding information about individuals. However, that misses the point that the Sixth Circuit made in its decision: Disclosure of personal information can have results much more serious than a bruised ego.

What's The Limit?

One of the fascinating questions that remains unanswered by the Sixth Circuit decision is just how far its rationale can go. Clearly, there is a case to be made for the harmful effects disclosure of names, addresses and phone numbers of undercover police can have when they are released to the criminals they have helped put away. The Sixth Circuit pointed out that the city had received another, more benign, request from Police Officers for Equal Rights, and the court indicated that it was unwilling to say whether disclosure to such a group would trigger the officers' constitutional privacy rights. However, there are probably other groups that can make equally convincing arguments against disclosure. And if this information cannot be disclosed to a requester who might threaten or hurt the officers, should the information be made available to databrokers or others who would sell the information to all comers willing to pay for it? In other words, if the state cannot directly disclose it, should it be able to foster its secondary disclosure by providing it to other less-threatening requesters?

As an access advocate, I believe that information can be used responsibly for socially useful goals. What is particularly galling about the concept of disclosure to one is disclosure to all -- an egalitarian approach to access -- is that it encourages agencies to look at the worst-case scenario flowing from disclosure. It presumes that requesters are either fronts for organized crime or international terrorists. Most information can be used responsibly, and the responsible use of information should not be derailed by the potential that someone will use it irresponsibly. Disclosures to researchers, historians, scientists and public-interest groups should be allowed where the proposed use of the information is considered to be socially beneficial. While this allows agencies to pick and choose to some extent, if reasonable standards are developed, such disclosures should not be rife with favoritism.

The status quo today is that no one gets personal information that does not "shed light on government operations or activities." To assess the purpose of a request for personal information is not to impermissibly delve into the requesters' motives. The requester never has to reveal his or her motive for making the request, but if he or she does not, the certain result is nondisclosure. For those requesters who believe they have a socially useful reason for asking for disclosure, the possibility would exist that the agency would agree with them. Obviously, just because the requester believes disclosure would be socially useful does not mean it would be, but returning to the concept of a broad-based balancing test, which has lost favor since the Supreme Court's Reporters Committee decision, offers the chance that public access will be a more meaningful term.

Kallstrom vs. City of Columbus (No. 96-3853, U.S. Court of Appeals for the Sixth Circuit, Feb. 12, 1998) is available online at the Sixth Circuit's home page.

Harry Hammitt is editor/publisher
of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues.

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Harry Hammitt Contributing Writer